PVH 8-K
Pvh Corp. /De/ (PVH)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry into a Material Definitive Agreement; Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
Underwriting Agreement
On June 10, 2025, PVH Corp., a Delaware corporation (“PVH” or the “Company”), entered into an Underwriting Agreement (the “Underwriting Agreement”) with Barclays Capital Inc., BofA Securities, Inc., Citigroup Global Markets Inc., J.P. Morgan Securities LLC and Mizuho Securities USA LLC, as Representatives (as defined in the Underwriting Agreement) of the several underwriters (the “Underwriters”) listed on Schedule I thereto, in connection with an offering of $500 million aggregate principal amount of 5.500% Senior Notes due 2030 (the “Notes”). The Notes to be sold pursuant to the Underwriting Agreement have been registered pursuant to a Registration Statement on Form S-3 (Registration No. 333-278465) filed and effective on April 2, 2024 (the “Registration Statement”). The Registration Statement includes a Prospectus, dated April 2, 2024 (the “Prospectus”), which is supplemented by a Prospectus Supplement, dated June 10, 2025, filed pursuant to the Securities Act of 1933, as amended (the “Act”) Rule 424(b)(5) (the “Prospectus Supplement” and the Prospectus, as supplemented by the Prospectus Supplement, the “Final Prospectus”).
The foregoing description of the Underwriting Agreement does not purport to be complete and is qualified in its entirety by reference to the Underwriting Agreement, a copy of which is attached as Exhibit 1.1 to this Report and is incorporated herein by reference.
5.500% Senior Notes due 2030
On June 13, 2025, the Company completed its offering of the Notes.
The Notes were issued under that certain Indenture, dated as of April 15, 2024 (the “Base Indenture”), as supplemented by that certain Supplemental Indenture No. 2, dated as of June 13, 2025 (the “Supplemental Indenture” and, the Base Indenture as supplemented by the Supplemental Indenture, the “Indenture”), in each case between the Company and U.S. Bank Trust Company, National Association, as trustee.
The net proceeds to the Company from the sale of the Notes, after the Underwriters’ discount and offering expenses, is estimated to be approximately $489.6 million. The Company intends to use the net proceeds of the offering to repay or redeem the Company’s existing 4⅝% Senior Notes due 2025, of which $500 million aggregate principal amount is outstanding, and for general corporate purposes. See the section of the Final Prospectus entitled “Use of Proceeds” for more information.
The Notes will bear interest at a rate of 5.500% per year, payable in cash semi-annually in arrears on June 13 and December 13 of each year, beginning on December 13, 2025. The Notes mature on June 13, 2030.
Prior to May 13, 2030 (one month prior to the maturity date), the Company may redeem the Notes, at its option, in whole or in part, at any time and from time to time, at the redemption price described in the Supplemental Indenture, plus accrued and unpaid interest, if any, to, but excluding, the redemption date. On or after May 13, 2030, the Company may redeem the Notes, at its option, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed plus accrued and unpaid interest, if any, to, but excluding, the redemption date.
If a Change of Control Repurchase Event (as defined in the Supplemental Indenture) occurs with respect to the Notes, unless the Company has exercised its right to redeem such Notes as described in the immediately preceding paragraph, it will be required to make an offer to each holder of the applicable Notes to repurchase all or any part (equal to $2,000 and integral multiples of $1,000 in excess thereof) of that holder’s Notes, at a repurchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased, plus any accrued and unpaid interest on the Notes repurchased to, but excluding, the date of repurchase.
The Indenture limits the ability of (i) the Company and its subsidiaries to incur liens and enter into certain sale and leaseback transactions and (ii) the Company to consolidate or merge, or sell, convey, transfer, lease or otherwise dispose of all or substantially all of its assets.
The Notes are the Company’s unsecured unsubordinated obligations, and the payment of principal of, premium, if any, and interest will rank equally in right of payment with all of its existing and future unsecured and unsubordinated indebtedness, liabilities and other obligations.
The foregoing description of the Base Indenture, the Supplemental Indenture and the Notes does not purport to be complete and is qualified in its entirety by reference to the Base Indenture, the Supplemental Indenture and the form of Notes, copies of which are attached as Exhibits 4.1, 4.2 and 4.3, respectively, to this Report and are incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| PVH CORP. | ||||
| By: | /s/ Mark D. Fischer | |||
| Name: | Mark D. Fischer | |||
| Title: | Executive Vice President and Secretary | |||
Date: June 13, 2025
Exhibit 1.1
Execution Version
$500,000,000
PVH CORP.
5.500% Senior Notes due 2030
Underwriting Agreement
June 10, 2025
BofA Securities, Inc.
Barclays Capital Inc.
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
Mizuho Securities USA LLC
c/o BofA Securities, Inc.
One Bryant Park
New York, New York 10036
c/o Barclays Capital Inc.
745 Seventh Ave
New York, New York 10019
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
c/o Mizuho Securities USA LLC
1271 Avenue of the Americas
New York, New York 10020
As Representatives of the several Underwriters
named in Schedule I hereto
Ladies and Gentlemen:
PVH Corp., a Delaware corporation (the “Company”), proposes, upon the terms and conditions set forth in this agreement (this “Agreement”) to issue and sell to BofA Securities, Inc. (“BofA”), Barclays Capital Inc. (“Barclays”), Citigroup Global Markets Inc. (“Citigroup”), J.P. Morgan Securities LLC (“JPM”) and Mizuho Securities USA LLC (“Mizuho”), and the other several underwriters named on Schedule I hereto (the “Underwriters”), for which BofA, Barclays, Citigroup, JPM and Mizuho are acting as representatives (the “Representatives”), $500,000,000 in aggregate principal amount of its 5.500% Senior Notes due 2030 (the “Notes”). The Notes will (i) have terms and provisions which are summarized in the Pricing Disclosure Package and Prospectus (as defined below) and (ii) are to be issued pursuant to an Indenture, to be dated as of April 15, 2024 (the “Base Indenture”), between the Company and U.S. Bank National Association, as Trustee (the “Trustee”), as supplemented by the Second Supplemental Indenture, to be dated June 13, 2025 (the “Supplemental Indenture” and together with the Base Indenture, the “Indenture”), between the Company and the Trustee. This Agreement is to confirm the agreement concerning the purchase of the Notes from the Company by the Underwriters.
The entry into this Agreement and the issuance and sale of the Notes are referred to herein collectively as the “Transactions.”
1. Representations, Warranties and Agreements of the Company. The Company represents, warrants and agrees with each Underwriter that:
(a) A registration statement on Form S-3 (File No. 333-278465) relating to the Notes has (i) been filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”); and (ii) become effective under the Securities Act. Copies of such registration statement and any amendment thereto have been delivered by the Company to you as the Representatives of the Underwriters. As used in this Agreement:
(i) “Applicable Time” means 4:15 p.m. (New York time) on the date of this Agreement;
(ii) “Effective Date” means the date and time as of which the Registration Statement (as defined below) became effective by the Commission in accordance with the rules and regulations under the Securities Act;
(iii) “Issuer Free Writing Prospectus” means each “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act);
(iv) “Preliminary Prospectus” means any preliminary prospectus relating to the Notes included in such registration statement or filed with the Commission pursuant to Rule 424(b) under the Securities Act, including any preliminary prospectus supplement thereto relating to the Notes;
(v) “Pricing Disclosure Package” means, as of the Applicable Time, the most recent Preliminary Prospectus, together with each Issuer Free Writing Prospectus filed or used by the Company at or before the Applicable Time, other than the road show presentation set forth in Schedule II hereto;
(vi) “Prospectus” means the final prospectus relating to the Notes, including any prospectus supplement thereto relating to the Notes, as filed with the Commission pursuant to Rule 424(b) under the Securities Act; and
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(vii) “Registration Statement” means, collectively, the various parts of such registration statement, each as amended as of the Effective Date for such part, including any Preliminary Prospectus or the Prospectus, all exhibits to such registration statement and including the information deemed by virtue of Rule 430B under the Securities Act to be part of such registration statement as of the Effective Date. Any reference to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents incorporated by reference therein pursuant to Form S-3 under the Securities Act as of the date of such Preliminary Prospectus or the Prospectus, as the case may be. Any reference to the “most recent Preliminary Prospectus” shall be deemed to refer to the latest Preliminary Prospectus included in the Registration Statement or filed pursuant to Rule 424(b) under the Securities Act prior to or on the date hereof. Any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any document filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), after the date of such Preliminary Prospectus or the Prospectus, as the case may be, and before the date of such amendment or supplement and incorporated by reference in such Preliminary Prospectus or the Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to include any document filed with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act after the Effective Date and before the date of such amendment that is incorporated by reference in the Registration Statement. The Commission has not issued any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending the effectiveness of the Registration Statement, and no proceeding for such purpose or pursuant to Section 8A of the Securities Act has been instituted or, to the knowledge of the Company, threatened by the Commission. The Commission has not notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto.
(b) Since the time of the filing of the Registration Statement, the Company has been, and continues to be a “well-known seasoned issuer” (as defined in Rule 405) eligible to use Form S-3 for the offering of the Notes. The Company was not an “ineligible issuer” (as defined in Rule 405) at any such time or date. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and was filed not earlier than the date that is three years prior to the applicable Closing Date.
(c) The Registration Statement conformed and will conform in all material respects on the Effective Date and on the Closing Date, and any amendment to the Registration Statement filed after the date hereof and prior to the Closing Date will conform in all material respects when filed, to the applicable requirements of the Securities Act, the rules and regulations thereunder and the Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (the “Trust Indenture Act”). The most recent Preliminary Prospectus conformed, and the Prospectus will conform, in all material respects when filed with the Commission pursuant to Rule 424(b) under the Securities Act and on the Closing Date to the applicable requirements of the Securities Act, the rules and regulations thereunder and the Trust Indenture Act. The documents incorporated by reference in any Preliminary Prospectus or the Prospectus conformed when filed with the Commission, in all material respects to the applicable requirements of the Exchange Act or the Securities Act, as applicable, and the rules and regulations of the Commission thereunder.
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(d) The Registration Statement did not, as of the Effective Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided that no representation or warranty is made as to (i) information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 13 or (ii) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act.
(e) The Prospectus will not, as of its date or as of the Closing Date, contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein (which information is specified in Section 13).
(f) The documents incorporated by reference in any Preliminary Prospectus or the Prospectus did not, and any further documents filed and incorporated by reference therein will not, when filed with the Commission, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(g) The Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Pricing Disclosure Package made in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein (which information is specified in Section 13 hereof).
(h) Each Issuer Free Writing Prospectus listed in Schedule II hereto, when taken together with the Pricing Disclosure Package, did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information contained in or omitted from such Issuer Free Writing Prospectus listed in Schedule II hereto in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 13.
(i) Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the applicable requirements of the Securities Act and the rules and regulations thereunder on the date of first use, and the Company has complied with all prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Securities Act and rules and regulations thereunder. The Company has not made any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives, except as set forth on Schedule II hereto.
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(j) The Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease its properties and conduct its business as described in the Pricing Disclosure Package and the Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, have a material adverse effect on the financial condition, business, properties or results of operations of the Company and its subsidiaries taken as a whole (a “Material Adverse Effect”).
(k) Each of the subsidiaries listed on Exhibit A (the “Material Subsidiaries”) (i) has been duly incorporated, formed or organized, as applicable, and (ii) is an existing corporation or other business entity in good standing under the laws of the jurisdiction of its incorporation, formation or organization (to the extent that such concept exists in the applicable jurisdiction), as applicable, with corporate or other power and authority to own or lease its properties and conduct its business as described in the Pricing Disclosure Package and the Prospectus; and each Material Subsidiary is duly qualified to do business as a foreign corporation or other business entity, as applicable, in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effect. All of the issued and outstanding capital stock of, or other ownership interests in, each Material Subsidiary have been duly authorized and validly issued and are fully paid and nonassessable; and, except as disclosed in the Pricing Disclosure Package and the Prospectus, the capital stock of, or other ownership interests in, each Material Subsidiary is owned by the Company, directly or through subsidiaries free from material liens and encumbrances.
(l) This Agreement has been duly authorized, executed and delivered by the Company.
(m) The Base Indenture has been duly authorized, executed and delivered by the Company and, assuming the due authorization, execution and delivery by the Trustee, constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization or similar laws relating to or affecting creditors’ rights generally and by general equitable principles (regardless of whether considered in a proceeding in equity or at law) (the “Enforceability Exceptions”). The Supplemental Indenture has been duly authorized by the Company and, upon execution and delivery of the Supplemental Indenture and assuming the due authorization, execution and delivery by the Trustee, will constitute a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions. The Base Indenture conforms, and the Supplemental Indenture will conform, in all material respects to the description thereof in the Pricing Disclosure Package and the Prospectus. The Base Indenture has been and the Supplemental Indenture will be duly qualified under the Trust Indenture Act, and the Base Indenture conforms and the Supplemental Indenture will conform in all material respects to the requirements of the Trust Indenture Act that are applicable to an indenture which is qualified thereunder.
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(n) The Notes have been duly authorized by the Company and, when executed by the Company and authenticated by the Trustee in accordance with the Indenture and delivered to the Underwriters against payment therefor in accordance with the terms of this Agreement, will be validly issued and delivered, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms, except as may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting creditors’ rights generally and by general equitable principles (regardless of whether considered in a proceeding in equity or at law), and the Notes will conform in all material respects, to the description thereof in the Pricing Disclosure Package and the Prospectus.
(o) The execution, delivery and performance by the Company of this Agreement and the Indenture, and the consummation of the Transactions do not and will not conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default (or an event which with the giving of notice or the lapse of time or both would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any assets or properties of the Company or any of its subsidiaries under (i) the charter and bylaws of the Company, (ii) the charter, bylaws or other equivalent organizational documents of any of the Company’s Material Subsidiaries, (iii) the charter, bylaws or other equivalent organizational documents of any of the Company’s subsidiaries that are not Material Subsidiaries, (iv) any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any subsidiary of the Company or any of their properties, assets or operations or (v) any indenture, mortgage, loan or credit agreement, note, lease, permit, license or other agreement or instrument to which the Company or any subsidiary of the Company is a party or by which the Company or any such subsidiary is bound or to which any of the assets or properties of the Company or any of its subsidiaries are subject, except, in the case of clauses (iii) through (v), for such conflicts, breaches, violations or defaults or liens, charges or encumbrances as would not, individually or in the aggregate, have a Material Adverse Effect or a material adverse effect on the execution, delivery and performance by the Company of this Agreement and the Indenture, and the ability of the Company to consummate the Transactions.
(p) There are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in any securities being registered pursuant to any registration statement filed by the Company under the Securities Act.
(q) Neither the Company nor any of its subsidiaries is (i) in violation of its charter or by-laws or other constitutive documents, except (in the case of such subsidiaries only) as would not have a Material Adverse Effect, or (ii) except as would not have a Material Adverse Effect, in default in the performance of any obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument to which the Company or its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective property is bound.
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(r) No consent, approval, order, registration or authorization of or filing with any governmental agency or body or court is required in connection with the consummation of the Transactions, except for consents, approvals, orders and authorizations required under the Securities Act, the rules and regulations of the Commission, the Exchange Act, the Trust Indenture Act, the New York Stock Exchange (the “NYSE”), and applicable state or foreign securities laws and/or the bylaws and rules of the Financial Industry Regulatory Authority, Inc. (the “FINRA”) in connection with the purchase and sale of the Notes by the Underwriters, each of which has been obtained and are in full force and effect.
(s) The Company’s capitalization as of May 4, 2025 on an actual and as adjusted basis for the consummation of the Offering of the Notes and the application of the proceeds therefrom, as such transactions are described in the Pricing Disclosure Package and the Prospectus, is set forth in the Pricing Disclosure Package and the Prospectus, respectively.
(t) Ernst & Young LLP, who has certified certain financial statements of the Company and its subsidiaries, which have audited the Company’s internal control over financial reporting and management’s assessment thereof, are independent registered public accountants as required by the Securities Act, and the rules and regulations of the Commission and of the Public Company Accounting Oversight Board.
(u) The financial statements of the Company (including the related notes and supporting schedules) included or incorporated by reference in the Pricing Disclosure Package and the Prospectus comply as to form in all material respects with the applicable requirements of Regulation S-X under the Securities Act and present fairly, in all material respects, the financial condition, results of operations and cash flows of the entities purported to be shown thereby at the dates and for the periods indicated and have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis throughout the periods involved. The interactive data in eXtensible Business Reporting Language incorporated by reference in the Pricing Disclosure Package and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance in all material respects with the Commission’s rules and guidelines applicable thereto.
(v) The Company and each of its subsidiaries have good and marketable title to all items of real property and other property owned by each of them, in each case free and clear of any pledge, lien, encumbrance, security interest or other claim of any third party or defect in title, except (i) to the extent such would not, individually or in the aggregate, have a Material Adverse Effect and (ii) liens described in the Pricing Disclosure Package. Any real property and other property held under lease by the Company or any such subsidiary are held under valid, subsisting and enforceable leases, with no exceptions except as would not, individually or in the aggregate, have a Material Adverse Effect.
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(w) The Company and each of its subsidiaries carry or are entitled to the benefits of insurance in such amounts as, in the reasonable judgment of the Company, are sufficient for the businesses in which they are engaged and, except as would not have a Material Adverse Effect, all such insurance is in full force and effect.
(x) The Company is not, and on the Closing Date, after giving effect to the offering of the Notes and the application of the proceeds therefrom as described under “Use of Proceeds” in each of the Pricing Disclosure Package and the Prospectus, will not be required to register as, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(y) Except as disclosed in the Pricing Disclosure Package and the Prospectus, there are no pending actions, suits, proceedings or investigations against or, to the Company’s knowledge, affecting the Company, any of its subsidiaries or any of their respective properties, assets or operations that would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, or would reasonably be expected to materially and adversely affect the ability of the Company, to perform its obligations under this Agreement, the Indenture or the Notes; and, to the Company’s knowledge, no such actions, suits or proceedings are threatened.
(z) Except as would not, individually or in the aggregate, have a Material Adverse Effect, no labor disturbance by the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is threatened.
(aa) Except as would not, individually or in the aggregate, have a Material Adverse Effect, the Company and each of its subsidiaries have filed on a timely basis, or caused to be filed on a timely basis, in each case, taking into account extensions, any and all tax returns required to be filed by them under applicable law, which returns are complete and correct in all material respects. Neither the Company nor any of its subsidiaries is in default in the payment of any taxes, except as would not, individually or in the aggregate, have a Material Adverse Effect.
(bb) Neither the Company nor any of its subsidiaries has taken, directly or indirectly, any action designed to cause or result in, or that would reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes.
(cc) Except as disclosed in the Pricing Disclosure Package and the Prospectus, since the date of the latest audited financial statements of the Company included or incorporated by reference in the Pricing Disclosure Package and the Prospectus, there has not been a Material Adverse Effect.
(dd) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles in the United States and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company and its subsidiaries’ internal controls over financial reporting are effective.
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(ee) The Company and its subsidiaries have established and maintain disclosure controls and procedures (as such term is defined in Rule 13(a)-15(e) under the Exchange Act), such disclosure controls and procedures are designed in a manner the Company believes sufficient to ensure that (i) the information required to be disclosed by the Company and its subsidiaries in the reports they file or submit under the Exchange Act is accumulated and communicated to the management of the Company and its subsidiaries, including their respective principal executive officers and principal financial officers, as appropriate and to the extent required by the applicable rules and regulations of the Commission, to allow timely decisions regarding required disclosure to be made and such disclosure controls and procedures are effective in all material respects to perform the functions for which they were established and (ii) the interactive data in eXtensible Business Reporting Language incorporated by reference in the Pricing Disclosure Package and the Prospectus fairly presents the information called for in all material respects and is prepared in accordance in all material respects with the Commission’s rules and guidelines applicable thereto.
(ff) Since the end of the Company’s most recent audited fiscal year or except as disclosed in the Pricing Disclosure Package, there has been (i) no identified material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
(gg) The Company has not distributed and, prior to the later to occur of the Closing Date, and completion of the distribution of the Notes will not distribute any offering material in connection with the offering and sale of the Notes other than the Pricing Disclosure Package, the Prospectus and any Issuer Free Writing Prospectuses to which the Representatives have consented in accordance with Section 5(a), as applicable.
(hh) The Company and its subsidiaries possess certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them, except where the failure to possess such certificates, authorities or permits would not, individually or in the aggregate, have a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that, if determined adversely to the Company or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect.
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(ii) Except as would not, individually or in the aggregate, have a Material Adverse Effect, or except as disclosed in the Pricing Disclosure Package and the Prospectus (including, without limitation, such disclosure as to the ownership of the Calvin Klein trademarks by the Calvin Klein Trademark Trust): (i) the Company or one if its subsidiaries own, or have a valid license to use on reasonable terms, patents, patent rights, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names and Internet domain names or other intellectual property (collectively, “Intellectual Property”) necessary for the conduct of the business of the Company and its subsidiaries as now conducted; and (ii) neither the Company nor any of its subsidiaries (X) to the knowledge of the Company, is in violation or infringement of, or has violated or infringed, any intellectual property rights of any other person or (Y) has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would reasonably be expected to render any Intellectual Property invalid or inadequate to protect the interest of the Company or any of its subsidiaries therein. The Company or one of its subsidiaries own the owned Intellectual Property free and clear of any liens or encumbrances, except as would not, individually or in the aggregate, have a Material Adverse Effect, or as disclosed in the Pricing Disclosure Package. As of the date of this Agreement there are not, and as of the date of the Closing there will not be, any events which are reasonably likely to result in a foreclosure on any such liens.
(jj) No “nationally recognized statistical rating organization” as that term is used by the SEC in Section 15E under the Exchange Act (i) has imposed (or has notified the Company in writing that it is considering imposing) any condition (financial or otherwise) on the Company’s retaining any rating assigned to the Company or any securities of the Company or (ii) has notified the Company in writing that it is considering (a) the downgrading, suspension or withdrawal of, or any review for a possible change that does not indicate the direction of the possible change in, any rating so assigned or (b) any change in the outlook for any rating of the Company or any securities of the Company (other than, in the case of the foregoing clause (ii), as has been publicly announced prior to the date of this Agreement).
(kk) Neither the Company nor any of its Material Subsidiaries is in violation of any statute, law, rule, regulation, judgment, order or decree (including, without limitation environmental laws and the Employee Retirement Income Security Act of 1974, as amended) applicable to it of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over it, except as would not, individually or in the aggregate, have a Material Adverse Effect.
(ll) Neither the Company nor any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, and the Company and its subsidiaries have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
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“FCPA” means Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
(mm) The operations of the Company and its subsidiaries are and have been conducted at all times in all material respects in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best of the Company’s knowledge, threatened.
(nn) Neither the Company nor any of its subsidiaries, any of the Company’s affiliates, any director or officer, nor, to the knowledge of the Company, any agent, employee or affiliate of the Company or any of its subsidiaries is (i) currently the subject or the target of any sanctions administered or enforced by the Office of Foreign Assets Control of the U.S. Treasury Department, the U.S. Department of State, the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”); or (ii) located, organized or resident in a country or territory that is the subject or target of Sanctions (including, without limitation, Cuba, Iran, North Korea, Syria, the Zaporizhzhia, Kherson and Crimea regions of Ukraine, the so-called Donetsk People’s Republic and the so-called Luhansk People’s Republic); and the Company will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing or facilitating the activities or business of any person, or in any country or territory, that at the time of such financing or facilitation and is the subject or target of Sanctions or in any other manner that will result in a violation by any person (including any person participating in the transaction whether as an underwriter, advisor, investor or otherwise) of Sanctions. The Company and each of its subsidiaries have not knowingly engaged in for the past five years, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any individual or entity, or in any country or territory, that at the time of the dealing or transaction, is or was the subject or target of Sanctions.
(oo) The Company has not taken any action or omitted to take any action (such as issuing any press release relating to any Notes without an appropriate legend) which may result in the loss by any of the Underwriters of the ability to rely on any stabilization safe harbor provided by the Financial Conduct Authority under the Financial Services and Markets Act 2000.
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(pp) Except (i) as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or (ii) as otherwise disclosed in the Pricing Disclosure Package and the Prospectus: (A) the Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and the Company and its subsidiaries have taken commercially reasonable technical and organizational measures to protect its IT Systems and Personal Data (as defined below) used in connection with, the operation of the business of the Company and its subsidiaries as currently conducted, free and clear of all material Trojan horses, time bombs, and malware; (B) the Company and its subsidiaries have implemented and maintained reasonable controls, policies, procedures, and safeguards to maintain and protect their confidential information and the integrity, continuous operation, and security of all IT Systems and confidential data (including, as and to the extent applicable, “personal data” (as defined by the EU General Data Protection Regulations (“GDPR”) (EU 2016 679)) and personally identifiable protected data under applicable laws (“Personal Data”)) used in connection with their businesses, and, to the Company’s knowledge, there have been no material breaches, violations, outages or unauthorized uses of or accesses to any IT System or Personal Data used in connection with the operation of the Company’s and its subsidiaries’ businesses, except, in each case, for those that have been remedied or may reasonably be expected to be remedied without material cost or liability or the duty to notify any person as a result of a material breach; and (C) the Company and its subsidiaries are presently in material compliance with all applicable laws, rules and regulations and all judgments, and orders binding on any of them, as and to the extent applicable, of any court or arbitrator or governmental or regulatory authority relating to the privacy and security of IT Systems and Personal Data and to the protection of the Company’s and its subsidiaries’ IT Systems and Personal Data.
Any certificate signed by any officer of the Company and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Notes shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
For purposes of this Section 1, as well as for Section 7 hereof, references to “the Preliminary Prospectus and the Prospectus” or “the Pricing Disclosure Package and the Prospectus” are to each of the Preliminary Prospectus or the Pricing Disclosure Package, as the case may be, and the Prospectus as separate or stand-alone documentation (and not the Preliminary Prospectus or the Pricing Disclosure Package, as the case may be, and the Prospectus taken together), so that representations, warranties, agreements, conditions and legal opinions will be made, given or measured independently in respect of each of the Preliminary Prospectus or the Pricing Disclosure Package, as the case may be, and the Prospectus.
2. Purchase of the Notes by the Underwriters. Subject to the terms and conditions and upon the basis of the representations and warranties herein set forth, the Company agrees to issue and sell to the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at a price equal to 99.120% of the principal amount thereof, plus accrued interest, if any, from June 13, 2025, the principal amount of the Notes set forth opposite such Underwriter’s name in Schedule I hereto.
3. Offering of Notes by the Underwriters. Upon authorization by the Representatives of the release of the Notes, the several Underwriters propose to offer the Notes for sale upon the terms and conditions to be set forth in the Prospectus.
4. Delivery of and Payment for the Notes. Delivery to the Underwriters of and payment for the Notes will be made on June 13, 2025 or on such later date not more than three Business Days after such date and at such time as may be determined by the Representatives and the Company (such time and date, the “Closing Date”).
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Delivery of the Notes will be made to the Representatives by or on behalf of the Company against payment of the purchase price therefor by wire transfer of immediately available funds. The certificates for the Notes shall be in such denominations and registered in the name of Cede & Co., as nominee of The Depository Trust Company (“DTC”), and shall be made available for inspection on the business day precedent the Closing Date. Delivery of the Notes at the time and place specified in this Agreement is a further condition to the obligations of each Underwriter.
5. Covenants of the Company.
(a) The Company covenants and agrees with each Underwriter:
(i) To prepare the Prospectus in a form reasonably approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Closing Date except as provided herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, of the initiation or threatening, known to the Company, of any proceeding or examination for any such purpose, or any notice from the Commission objecting to the use of the form of Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal.
(ii) To furnish promptly to each of the Representatives and to counsel for the Underwriters a copy of the Registration Statement as filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.
(iii) To deliver promptly to the Representatives such number of the following documents as the Representatives shall reasonably request: (A) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, and (B) each Issuer Free Writing Prospectus, and (C) any document incorporated by reference in any Preliminary Prospectus or the Prospectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Notes or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if in the reasonable opinion of counsel for the Underwriters, for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.
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(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission.
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement, or the Prospectus, any document incorporated by reference in the Prospectus or any amendment to any document incorporated by reference in the Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, which consent shall not be unreasonably withheld.
(vi) Not to make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives, which consent shall not be reasonably withheld.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(viii) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
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(ix) To apply the net proceeds from the sale of the Notes being sold by the Company substantially in accordance with the description as set forth in the Prospectus under the caption “Use of Proceeds.”
(x) [Reserved.]
(xi) [Reserved.]
(xii) The Company will, whether or not this Agreement becomes effective or is terminated or the sale of the Notes to the Underwriters is consummated, pay all fees, expenses, costs and charges: (i) in connection with the preparation, printing, delivery and shipping of the Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus and any amendments or supplements thereto; (ii) in connection with the printing, producing, copying and delivering this Agreement, the Indenture, closing documents (including any compilations thereof) and any other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering, purchase, sale and delivery of the Notes; (iii) in connection with the services of the Company’s independent registered public accounting firm; (iv) in connection with the services of the Company’s counsel; (v) in connection with the qualification of the Notes under the securities laws of the several jurisdictions as provided in Section 5(a)(xvii) hereof (including the related reasonable fees and expenses of counsel to the Underwriters related thereto); (vi) in connection with any rating of the Notes by rating agencies; (vii) in connection with the services of the Trustee and any agent of the Trustee (including the fees and disbursements of counsel for the Trustee); (viii) in connection with any “road show” or other investor presentations relating to the offering of the Notes (including, without limitation, for meetings and travel); (ix) in connection with the review by FINRA, if any, of the terms of the sale of the Notes and (x) otherwise incident to the performance of its obligations hereunder for which provision is not otherwise made in this Section 5(a)(xii), including any stamp, documentary, issuance, registration or transfer taxes payable in connection with the initial sale of the Notes to the Underwriters.
(xiii) The Company will cooperate with the Underwriters and use its reasonable best efforts to permit the offered Notes to be eligible for clearance and settlement through the facilities of DTC and to maintain such eligibility for so long as the Notes remain outstanding.
(xiv) [Reserved.]
(xv) [Reserved.]
(xvi) During the period beginning from the date hereof and continuing to and including the Closing Date, the Company will not, without the prior written consent of the Representatives, directly or indirectly, issue, sell, offer to sell, grant any option for the sale of or otherwise dispose of, any debt securities that are substantially similar to the Notes (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof.)
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(xvii) The Company will cooperate with the Representatives and with counsel to the Underwriters in connection with the qualification of the Notes for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided, however, that in no event will the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject.
(xviii) The Company has not distributed and, prior to the Closing Date, will not distribute any offering material in connection with the offering and sale of the Notes other than any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus to which the Representatives have consented in accordance with Section 1(h) or 5(a)(vi) and any Issuer Free Writing Prospectus set forth on Schedule II hereto.
(xix) The Company will not take, directly or indirectly, any action designed to cause or result in, or that might cause or result in, stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes.
(b) Each Underwriter severally agrees that such Underwriter shall not include any “issuer information” (as defined in Rule 433 under the Securities Act) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act) used or referred to by such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”); provided that (i) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus, and (ii) “issuer information,” (as used in this Section 5(b)), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from issuer information.
6. [Reserved.]
7. Conditions of Underwriters’ Obligations. The obligations of the Underwriters hereunder are subject to (i) the accuracy in all respects of the representations and warranties of the Company contained herein that are qualified by materiality or Material Adverse Effect (including, for the avoidance of doubt, the representations and warranties contained in Sections 1(d), 1(e), 1(f), 1(g) and 1(h) and the accuracy in all material respects of the representations and warranties of the Company contained herein that are not so qualified, in each case as of the date hereof and as of the Closing Date (as if made at the Closing Date) and (ii) each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose shall have been initiated or, to the knowledge of the Company, threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with.
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(b) [Reserved.]
(c) The Company shall have furnished to such counsel all documents and information that they may reasonably request in connection with the issuance of the Notes.
(d) The Representatives shall have received from Wachtell, Lipton, Rosen & Katz, counsel for the Company, its opinion letter and negative assurance statement, addressed to the Underwriters, dated the Closing Date in form and substance as previously agreed to by counsel for the Underwriters.
(e) The Representatives shall have received from Mark D. Fischer, Esq., General Counsel for the Company, his opinion letter, addressed to the Underwriter, dated the Closing Date in form and substance as previously agreed to by counsel for the Underwriters.
(f) The Representatives shall have received from Latham & Watkins LLP, counsel to the Underwriters, such opinion or opinions, addressed to the Underwriters, dated the Closing Date and in form and substance satisfactory to the Representatives, with respect to the Notes, Indenture, Prospectus and Pricing Disclosure Package and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Representatives shall have received from the Company a certificate, dated the Closing Date, of its Executive Vice President and Treasurer and Executive Vice President, General Counsel and Secretary stating that, to their knowledge after reasonable investigation: (i) the representations and warranties of the Company in this Agreement are true and correct (including, for the avoidance of doubt, the representations and warranties contained in Sections 1(d), 1(e), 1(f), 1(g) and 1(h), as if made at and as of the Closing Date, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be complied with or such conditions will be satisfied at or prior to the Closing Date, (ii) that no stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such officers, threatened; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto, and (iii) since the Applicable Time, there has occurred no event required to be set forth in an amendment or supplement to the Pricing Disclosure Package or the Prospectus which has not been so set forth.
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(h) Neither the Company nor any of its Material Subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package and the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) or (ii) except for the grant of equity pursuant to its existing stock incentive plans, and borrowings and letters of credit issued under the Company’s existing revolving credit facility, since such date there shall not have been any change in the capital stock or long-term debt of the Company or any of its Material Subsidiaries, or any change, or any development involving a prospective change, in or affecting the financial condition, business, properties or results of operations of the Company and its subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, in the reasonable judgment of the Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Notes or on the terms and in the manner contemplated in the Prospectus.
(i) [Reserved].
(j) Concurrently with the execution of this Agreement, the Representatives shall have received from Ernst & Young LLP, the Company’s independent registered public accounting firm, a “comfort” letter (the “initial E&Y comfort letter”) addressed to the Representatives on behalf of the Underwriters, dated the date hereof, and in form and substance satisfactory to the Representatives (i) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Package, as of a date not more than three Business Days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(k) The Representatives shall have received a “bring-down comfort” letter (the “E&Y bring-down comfort letter”) from Ernst & Young LLP, the Company’s independent registered public accounting firm, addressed to the Representatives on behalf of the Underwriters, dated the Closing Date, and in form and substance satisfactory to the Representatives (i) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the E&Y bring-down comfort letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three Business Days prior to the date of the E&Y bring-down comfort letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial E&Y comfort letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial E&Y comfort letter.
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(l) Subsequent to the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded to the debt securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization” (as that term is used by the SEC in Section 15E under the Exchange Act), and (ii) no such organization shall have publicly announced that it has any such debt securities under surveillance or review with possible negative implications (other than as has been publicly announced on or prior to the date of this Agreement).
(m) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any of the following: (i) trading in securities generally on the NYSE or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction; (ii) a banking moratorium shall have been declared by federal or state authorities; (iii) the United States shall have become engaged in hostilities, except for existing hostilities in Ukraine, Russia and the Middle East/Red Sea, or there shall have been an escalation in such hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States; or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in each case of the foregoing clauses (i) through (iv), in the reasonable judgment of the Representatives, impracticable or inadvisable to proceed with the offering of the Notes or on the terms and in the manner contemplated in the Prospectus.
(n) The Representatives shall have received a copy of the Indenture.
(o) The Notes shall be eligible for clearance settlement through DTC.
All opinions, certificates, letters and documents referred to in this Section 7 will be in compliance with the provisions of this Agreement only if they are reasonably satisfactory in form and substance to the Representatives and to counsel for the Underwriters.
8. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Underwriter from and against any loss, claim, damage or liability (or any action in respect thereof), joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage or liability (or action in respect thereof) arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Prospectus, the Prospectus, the Pricing Disclosure Package, the Prospectus as amended or supplemented or any Issuer Free Writing Prospectus or (ii) the omission or alleged omission to state in the Preliminary Prospectus, the Prospectus, the Pricing Disclosure Package, or the Prospectus as amended or supplemented or any Issuer Free Writing Prospectus, a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and will reimburse each Underwriter promptly upon demand, but in no event later than 30 days following such demand, for any documented legal or other expenses as reasonably incurred by such Underwriter in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action, notwithstanding the possibility that payments for such expenses might later be held to be improper, in which case such payments will be promptly refunded; provided, however, that the Company will not be liable under this Section 8(a) in any such case to the extent, but only to the extent, that any such loss, claim, damage, liability or action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by the Representatives, on behalf of the Underwriters, expressly therein (which information is specified in Section 13 hereof).
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(b) Each Underwriter, severally, but not jointly, will indemnify and hold harmless the Company against any loss, claim, damage or liability (or any action in respect thereof) to which the Company may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage or liability (or action in respect thereof) arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Prospectus, the Prospectus, the Pricing Disclosure Package, the Prospectus as amended or supplemented, or any Issuer Free Writing Prospectus, or (ii) the omission or alleged omission to state in the Preliminary Prospectus, the Prospectus, the Pricing Disclosure Package, or Prospectus as amended or supplemented, or any Issuer Free Writing Prospectus, a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and will reimburse the Company promptly upon demand, but in no event later than 30 days following such demand, for any legal or other expenses reasonably incurred by the Company in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action notwithstanding the possibility that payments for such expenses might later be held to be improper, in which case such payments will be promptly refunded; provided, however, that such indemnification or reimbursement will be available in each such case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by the Representatives, on behalf of such Underwriter, expressly for use therein (which information is specified in Section 13 hereof).
(c) Promptly after receipt by any indemnified party under Section 8(a) or 8(b) above of notice of any claim or the commencement of any action, the indemnified party will, if a claim in respect thereof is to be made against one or more indemnifying parties under such subsection, notify each indemnifying party in writing of the claim or the commencement of that action; provided, however, that the failure to so notify each such indemnifying party will not relieve it from any liability which it may have under paragraph (a) or (b) above except to the extent it has been prejudiced in any material respect by such failure or from any liability which it may have to an indemnified party otherwise than under paragraph (a) or (b) above. If any such claim or action will be brought against any indemnified party, and it notifies each indemnifying party thereof, each such indemnifying party will be entitled to participate therein and, to the extent that it wishes, jointly with each other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from each indemnifying party to the indemnified party of its election to assume the defense of such claim or action, each such indemnifying party will not be liable to the indemnified party under Section 8(a) or 8(b) above for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation, except that the indemnified party will have the right to employ counsel to represent the indemnified party who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the indemnified party against the indemnifying party under Section 8(a) or (b), as applicable if (i) the employment thereof has been specifically authorized by the indemnifying party in writing, (ii) the indemnified party shall have reasonably concluded that there may be one or more legal defenses available to the indemnified party which are different from or additional to those available to the indemnifying party and in the judgment of such counsel it is advisable to employ separate counsel, (iii) the indemnifying party has failed to assume the defense of such action and employ counsel reasonably satisfactory to the indemnified party, in which event the fees and expenses of such separate counsel will be paid by the indemnifying party and (iv) the named parties in any such proceeding (including any impleaded parties) including both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the indemnifying party shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties, and that all such fees and expenses shall be reimbursed promptly, but in no event later than 30 days, following demand from the indemnified parties for reimbursement of such fees and expenses as they are incurred; provided, however, that upon a final determination by a court of competent jurisdiction that any indemnified party was not entitled to payment of such expenses by the indemnifying party pursuant to this subsection (c) (including because such party is not entitled to indemnification with respect to such matter pursuant to this Section 8), such indemnified party shall promptly reimburse such payment to the indemnifying party. No indemnifying party will (i) without the prior written consent of the indemnified parties (which consent will not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent (A) includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (B) does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of any indemnified party, or (ii) be liable for any settlement of any such action effected without its written consent (which consent will not be unreasonably withheld), but if settled with the consent of each indemnifying party or if there be a final judgment for the plaintiff in any such action, each such indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment.
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(d) If the indemnification provided for in this Section 8 is unavailable or insufficient to hold harmless an indemnified party under Section 8(a) or 8(b) above, then each indemnifying party will, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in Section 8(a) or 8(b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Notes or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, or actions in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other hand will be deemed to be in the same proportion as the total net proceeds from the offering of the Notes (before deducting expenses) received by the Company bear to the total discounts and commissions received by the Underwriters. Relative fault will be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 8(d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take into account the equitable considerations referred to in the first sentence of this Section 8(d). The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to in the first sentence of this Section 8(d) will be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending against any action or claim which is the subject of this Section 8(d). Notwithstanding the provisions of this Section 8(d), no Underwriter will be required to contribute any amount in excess of the amount by which the total price at which the Notes purchased by it and distributed to investors were offered to investors exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this Section 8(d) to contribute are several in proportion to their respective purchase obligations and not joint. Each party entitled to contribution agrees that upon the service of a summons or other initial legal process upon it in any action instituted against it in respect to which contribution may be sought, it will promptly give written notice of such service to the party or parties from whom contribution may be sought, but the omission so to notify such party or parties of any such service will not relieve the party from whom contribution may be sought for any obligation it may have hereunder or otherwise (except as specifically provided in Section 8(c) above).
(e) The obligations of the Company under this Section 8 will be in addition to any liability that the Company may otherwise have, and will extend, upon the same terms and conditions set forth in this Section 8, to the respective affiliates, officers and directors of the Underwriters and each person, if any, who controls any Underwriter within the meaning of the Securities Act; and the obligations of the Underwriters under this Section 8 will be in addition to any liability that the respective Underwriters may otherwise have, and will extend, upon the same terms and conditions, to each director of the Company, to each officer of the Company and to each person, if any, who controls the Company within the meaning of the Securities Act.
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9. Substitution of Underwriters. If any Underwriter defaults in its obligation to purchase the principal amount of the Notes which it has agreed to purchase under this Agreement, the non-defaulting Underwriters will be obligated to purchase (in the respective proportions which the principal amount of the Notes set forth opposite the name of each non-defaulting Underwriter in Schedule I hereto bears to the total principal amount of the Notes less the principal amount of the Notes the defaulting Underwriter agreed to purchase set forth in Schedule I hereto) the principal amount of the Notes which the defaulting Underwriter agreed but failed to purchase; except that the non-defaulting Underwriters will not be obligated to purchase any of the Notes if the total principal amount of the Notes which the defaulting Underwriter or Underwriters agreed but failed to purchase exceed 9.09% of the total principal amount of the Notes, and any non-defaulting Underwriters will not be obligated to purchase more than 110% of the principal amount of the Notes set forth opposite its name in Schedule I hereto. If the foregoing maximums are exceeded, the non-defaulting Underwriters, and any other underwriters satisfactory to the Representatives who so agree, will have the right, but will not be obligated, to purchase (in such proportions as may be agreed upon among them) all of the Notes. If the non-defaulting Underwriters or the other underwriters satisfactory to the Underwriters do not elect to purchase the Notes that the defaulting Underwriter or Underwriters agreed but failed to purchase within 36 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company, except for the indemnity and contribution agreements of the Company and the Underwriters contained in Section 8 of this Agreement. As used in this Agreement, the term “Underwriter” includes any person substituted for an Underwriter pursuant to this Section 9.
If the non-defaulting Underwriters or the other underwriters satisfactory to the Representatives are obligated or agree to purchase the Notes of a defaulting Underwriter, the Representatives may postpone the Closing Date for up to seven full Business Days in order that the Company may affect any changes that may be necessary in the Prospectus or in any other document or agreement, and the Company agrees to provide promptly to the Representatives, for use by the Underwriters, any amendments or any supplements to the Prospectus which, in the opinion of the Representatives, may thereby be made necessary.
Nothing contained herein will relieve a defaulting Underwriter of any liability it may have for damages caused by its default.
10. Termination; Reimbursement of Expenses. Until the Closing Date, this Agreement may be terminated by the Representatives on behalf of the Underwriters by giving notice as hereinafter provided to the Company if the Company will have failed, refused or been unable, at or prior to the Closing Date, to perform any agreement on its part to be performed hereunder or any condition to the Underwriters’ obligations hereunder is not fulfilled. Any termination of this Agreement pursuant to this Section 10 will be without liability on the part of the Company or any Underwriter, except as otherwise provided in this Section 10 or Sections 5(a)(xii) or 8 hereof. If the sale of the Notes provided for in this Agreement is not consummated (i) by reason of any failure, refusal or inability on the part of the Company to perform any agreement on its part to be performed hereunder or (ii) because any other condition of the Underwriters’ obligations hereunder required to be fulfilled by the Company is not fulfilled, the Company will reimburse the Underwriters for all reasonable out-of-pocket disbursements (including reasonable fees and expenses of counsel to the Underwriters) incurred by the Underwriters in connection with any investigation or preparation made by them in respect of the marketing of the Notes or in contemplation of the performance by them of their obligations hereunder (upon demand and presentation of reasonable supporting documentation). It is understood, however, that, except as otherwise provided in this Section 10 or Section 5(a)(xii) or 8 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of counsel to the Underwriters and any advertising expenses incurred in connection with the offering of the Notes.
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Any notice referred to above may be given at the address specified in Section 12 of this Agreement in writing or by electronic mail or telephone, and if by electronic mail or telephone, will be immediately confirmed in writing.
11. Survival of Certain Provisions. The agreements contained in Section 8 of this Agreement and the representations, warranties and agreements of the Company contained in Sections 1 and 5 of this Agreement will survive the delivery of the Notes to the Underwriters hereunder and will remain in full force and effect, regardless of any termination or cancellation of this Agreement or any investigation made by or on behalf of any indemnified party.
12. Notices. Except as otherwise provided in the Agreement, (a) whenever notice is required by the provisions of this Agreement to be given to the Company, such notice will be in writing by mail, telex or facsimile transmission addressed to PVH Corp., 285 Madison Avenue, New York, New York 10017, Attention: Mark D. Fischer, Esq., Executive Vice President, General Counsel and Secretary, facsimile number (212)-381-3993, and (b) whenever notice is required by the provisions of this Agreement to be given to the several Underwriters, such notice will be in writing by mail, telex or facsimile transmission addressed to the Representatives in care of (a) BofA Securities, Inc. at 114 West 47th Street, NY8-114-07-01, New York, New York 10036, attention of High Grade Debt Capital Markets Transaction Management/Legal, facsimile: (646) 855-5958, (b) Barclays Capital Inc., 745 Seventh Ave, New York, New York 10019, Attention: Syndicate Registration, facsimile: (646) 834-8133, (c) Citigroup Global Markets Inc. at 388 Greenwich Street, New York, New York 10013, Attention: General Counsel, facsimile: (646) 291-1469, (d) J.P. Morgan Securities LLC at 383 Madison Avenue, New York, New York 10179, Attention: Investment Grade Syndicate Desk, facsimile: (212) 834-6081 and (e) Mizuho Securities USA LLC at 1271 Avenue of the Americas, New York, New York 10020, Attention: Debt Capital Markets, facsimile: (212) 205-7812; provided, however, that any notice to an Underwriter pursuant to Section 8(c) shall be delivered or sent by mail, telex or facsimile transmission to such Underwriter at its address set forth in its acceptance telex to the Representatives, which address will be supplied to any party hereto by the Representatives upon request. Any such statements, request, notices or agreements shall take effect at the time of receipt thereof. The Company shall be entitled to act and rely upon any request, consent, notice or agreement given or made on behalf of the Underwriters by the Representatives.
13. Information Furnished by Underwriters. The Underwriters severally confirm and the Company acknowledge and agree that the statements regarding the delivery of the Notes by the Underwriters set forth on the cover page of, and the concession and reallowance figures and the paragraph relating to stabilization by the Underwriters appearing under the caption “Underwriting” in, the Pricing Disclosure Package and the Prospectus are correct and constitute the only information concerning such Underwriters furnished in writing to the Company by or on behalf of the Underwriters specifically for inclusion in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any “road show” (as defined in Rule 433) not constituting an Issuer Free Writing Prospectus.
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14. Research Analyst Independence. The Company acknowledges that the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company and/or the offering of the Notes that differ from the views of their respective investment banking divisions. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Underwriters with respect to any conflict of interest that may arise from the fact that the views expressed by their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company by such Underwriters’ investment banking divisions. The Company acknowledges that each of the Underwriters is a full service securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that may be the subject of the transactions contemplated by this Agreement.
15. Nature of Relationship. The Company acknowledges and agrees that in connection with the offering and the sale of the Notes or any other services the Underwriters may be deemed to be providing hereunder, notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by the Underwriters: (i) no fiduciary or agency relationship between the Company and any other person, on the one hand, and the Underwriters, on the other hand, exists; (ii) the Underwriters are not acting as advisors, experts or otherwise, to the Company, including, without limitation, with respect to the determination of the public offering price of the Notes, and such relationship between the Company, on the one hand, and the Underwriters, on the other hand, is entirely and solely a commercial relationship, based on arms-length negotiations; (iii) any duties and obligations that the Underwriters may have to the Company shall be limited to those duties and obligations specifically stated herein; and (iv) the Underwriters and their respective affiliates may have interests that differ from those of the Company. The Company hereby waives any claims that the Company may have against the Underwriters with respect to any breach of fiduciary duty in connection with this offering.
16. Parties. This Agreement will inure to the benefit of and be binding upon the several Underwriters, the Company and their respective successors. This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except that (a) the representations, warranties, indemnities and agreements of the Company contained in this Agreement will also be deemed to be for the benefit of affiliates of or the person or persons, if any, who control any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and (b) the indemnification agreement of the Underwriters contained in Section 8 of this Agreement will be deemed to be for the benefit of directors of the Company, officers of the Company and any person controlling the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act. Nothing in this Agreement will be construed to give any person, other than the persons referred to in this paragraph, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.
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17. Definition of “Business Day.” “Business Day” means any day on which the NYSE is open for trading, other than any day on which commercial banks are authorized or required to be closed in New York City.
18. Governing Law; No Trial by Jury. This Agreement and any transaction contemplated by this Agreement and any claim, controversy or dispute arising under or related to this Agreement will be governed by, and construed in accordance with, the laws of the State of New York without regard to conflict of laws principles that would result in the application of any other law than the laws of the State of New York (other than Section 5-1401 of the General Obligations Law). Each of the parties hereto hereby submits to the exclusive jurisdiction of the Federal and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. Each of the parties hereto irrevocably and unconditionally waives any objection to the laying of venue of any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in Federal and state courts in the Borough of Manhattan in The City of New York and irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such suit or proceeding in any such court has been brought in an inconvenient forum. Each of the Company and the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
19. Recognition of the U.S. Special Resolutions Regimes.
(a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter is permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
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(c) For the purposes of this Section 19:
BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
20. Headings. The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
21. Counterparts. This Agreement may be signed in one or more counterparts, each of which will constitute an original and all of which together will constitute one and the same agreement. Delivery of an executed Agreement by one party to the other may be made by facsimile, e-mail or other transmission method as permitted by applicable law, and the parties hereto agree that any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. A party’s electronic signature (complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301- 309), as amended from time to time, or other applicable law) of this Agreement shall have the same validity and effect as a signature affixed by the party’s hand.
[Signature Pages Follow]
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Please confirm, by signing and returning to us this Agreement, that the foregoing correctly sets forth the Agreement between the Company and the several Underwriters.
| Very truly yours, | |||
| PVH Corp. | |||
| By: | /s/ Mark D. Fischer | ||
| Name: | Mark D. Fischer | ||
| Title: | Executive Vice President | ||
[Signature Page to Underwriting Agreement]
Confirmed and accepted as of
the date first above mentioned
| BofA Securities, Inc. | |||
| By: | /s/ Christopher Cote | ||
| Name: | Christopher Cote | ||
| Title: | Managing Director | ||
| Barclays Capital Inc. | |||
| By: | /s/ Meghan Maher | ||
| Name: | Meghan Maher | ||
| Title: | Managing Director | ||
| Citigroup Global Markets Inc. | |||
| By: | /s/ Adam D. Bordner | ||
| Name: | Adam D. Bordner | ||
| Title: | Managing Director | ||
| J.P. Morgan Securities LLC | |||
| By: | /s/ Som Bhattacharyya | ||
| Name: | Som Bhattacharyya | ||
| Title: | Executive Director | ||
| Mizuho Securities USA LLC | |||
| By: | /s/ Joseph Santaniello | ||
| Name: | Joseph Santaniello | ||
| Title: | Managing Director | ||
As Representatives and on behalf of the several Underwriters named in Schedule I hereto
[Signature Page to Underwriting Agreement]
SCHEDULE I
| Underwriters | Principal Amount of Notes to be Purchased | |||
| BofA Securities, Inc. | $ | 125,000,000 | ||
| Barclays Capital Inc. | 85,000,000 | |||
| Citigroup Global Markets Inc. | 85,000,000 | |||
| J.P. Morgan Securities LLC | 85,000,000 | |||
| Mizuho Securities USA LLC | 85,000,000 | |||
| Truist Securities, Inc. | 10,000,000 | |||
| BNP Paribas Securities Corp. | 5,000,000 | |||
| Citizens JMP Securities, LLC | 5,000,000 | |||
| PNC Capital Markets LLC | 5,000,000 | |||
| Scotia Capital (USA) Inc. | 5,000,000 | |||
| U.S. Bancorp Investments, Inc. | 5,000,000 | |||
| Total | $ | 500,000,000 | ||
Schedule I
SCHEDULE II
ISSUER FREE WRITING PROSPECTUSeS
| ● | Final Term Sheet, dated June 10, 2025, relating to the Notes, attached as Schedule III hereto. |
| ● | Road show dated as of June 9, 2025. |
Schedule II
SCHEDULE III
FINAL TERM SHEET
Filed Pursuant to Rule 433
Registration Statement No. 333-278465
and Preliminary Prospectus Supplement dated June 10, 2025
PVH Corp.
$500,000,000 5.500% Senior Notes due 2030
June 10, 2025
Pricing Term Sheet
| Issuer: | PVH Corp. |
| Offering Format: | SEC Registered |
| Expected Ratings (Moody’s / S&P)*: | Baa3 / BBB- (Stable / Positive Outlook) |
| Principal Amount: | $500,000,000 |
| Offering Price: | 99.870%, plus accrued interest, if any, from June 13, 2025 |
| Gross Proceeds: | $499,350,000 |
| Underwriting Discount: | 0.750% |
| Net Proceeds (before estimated offering expenses): | $495,600,000 |
| Trade Date: | June 10, 2025 |
| Settlement Date**: | June 13, 2025 (T+3) |
| Maturity Date: | June 13, 2030 |
| Coupon: | 5.500% |
| Benchmark Treasury: | 4.000% due May 31, 2030 |
| Spread to Benchmark Treasury: | +145 basis points |
| Benchmark Treasury Price and Yield: | 99-20+; 4.080% |
| Yield to Maturity: | 5.530% |
| Interest Payment Dates: | June 13 and December 13 of each year, commencing on December 13, 2025 |
Schedule III
| Optional Redemption: | Prior to May 13, 2030 (one month prior to the maturity date of the notes), the Issuer may redeem the notes, at its option, in whole or in part, at any time and from time to time, at a redemption price calculated by the Issuer and equal to the greater of (1) 100% of the principal amount of the notes to be redeemed and (2) the sum of the present values of the Remaining Scheduled Payments of principal and interest thereon that would be due if the notes matured on May 13, 2030, discounted to the redemption date, on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months), at the Treasury Rate plus 25 basis points, plus, in each case, accrued and unpaid interest, if any, to, but excluding, the redemption date. |
| On or after May 13, 2030, the Issuer may redeem the notes, at its option, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of notes to be redeemed plus accrued and unpaid interest, if any, to, but excluding, the redemption date. | |
| Denominations: | $2,000 and integral multiples of $1,000 in excess thereof. |
| Joint Book-Running Managers: | BofA Securities, Inc. Barclays Capital Inc. Citigroup Global Markets Inc. J.P. Morgan Securities LLC Mizuho Securities USA LLC |
| Senior Co-Manager: | Truist Securities, Inc. |
| Co-Managers: | BNP Paribas Securities Corp. Citizens JMP Securities, LLC PNC Capital Markets LLC Scotia Capital (USA) Inc. U.S. Bancorp Investments, Inc. |
| CUSIP: | 693656AE0 |
| ISIN: | US693656AE03 |
| * | Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time. |
| ** | We expect that delivery of the notes will be made to investors on or about June 13, 2025, which will be the third business day following the date of the prospectus supplement (such settlement being referred to as “T+3”). Under Rule 15c6-1 under the Exchange Act, trades in the secondary market are required to settle in one business day, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade notes prior to the delivery of the notes will be required, by virtue of the fact that the notes initially settle in T+3, to specify an alternate settlement arrangement at the time of any such trade to prevent a failed settlement. Purchasers of the notes who wish to trade the notes prior to their date of delivery hereunder should consult their advisors. |
This pricing term sheet is not an offer to sell the securities and it is not a solicitation of an offer to buy the securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
The Issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the Issuer has filed with the SEC for more complete information about the Issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, you may obtain copies of these documents (when available) from (i) BofA Securities, Inc. by calling toll-free at 1-800-294-1322; (ii) Barclays Capital Inc. by calling toll-free at 1-888-603-5847; (iii) Citigroup Global Markets Inc. by calling toll-free at +1-800-831-9146; (iv) J.P. Morgan Securities LLC by calling toll-free at (212)-834-4533; or (v) Mizuho Securities USA LLC by calling toll-free at 1-866-271-7403.
Any disclaimers or notices that may appear on this term sheet below the text of this legend are not applicable to this term sheet and should be disregarded. Such disclaimers may have been electronically generated as a result of this term sheet having been sent via, or posted on, Bloomberg or another electronic mail system.
Schedule III
EXHIBIT A
MATERIAL subsidiaries
As used in the Underwriting Agreement, the “Material Subsidiaries” of the Company are as follows:
Calvin Klein, Inc.
PVH B.V.
Tommy Hilfiger U.S.A., Inc.
Warnaco Inc.
Exhibit a
Exhibit 4.2
Execution Version
SUPPLEMENTAL INDENTURE No. 2
SUPPLEMENTAL INDENTURE No. 2, dated as of June 13, 2025 (this “Supplemental Indenture”), between PVH CORP., a Delaware corporation (the “Company”), and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, as trustee (the “Trustee”).
RECITALS OF THE COMPANY
WHEREAS, the Company and the Trustee are parties to that certain Indenture, dated as of April 15, 2024 (the “Base Indenture” and, as supplemented by this Supplemental Indenture, the “Indenture”), relating to the issuance from time to time by the Company of its Securities on terms to be specified at the time of issuance;
WHEREAS, Section 9.1(7) of the Base Indenture provides that the Company may enter into a supplemental indenture to provide for the issuance of any additional Securities under the Base Indenture;
WHEREAS, the Company desires to issue one series of Securities and has duly authorized the creation and issuance of such Securities and the execution and delivery of this Supplemental Indenture to modify the Base Indenture and provide certain additional provisions as hereinafter described;
WHEREAS, the parties hereto deem it advisable to enter into this Supplemental Indenture for the purpose of establishing the terms of such Securities and providing for the rights, obligations and duties of the Trustee with respect to such Securities; and
WHEREAS, all conditions and requirements of the Base Indenture necessary to make this Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been performed and fulfilled by the parties hereto.
NOW, THEREFORE, for and in consideration of the premises and other good and valuable consideration, receipt of which is hereby acknowledged by the parties hereto, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
(a) For all purposes of this Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise requires:
“Attributable Debt” means, on the date of any determination, the present value of the obligation of the lessee for Net Rental Payments during the remaining term of the lease included in a Sale and Leaseback Transaction, including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the interest rate set forth or implicit in the terms of such lease or, if not practicable to determine such rate, the weighted average interest rate per annum borne by the Senior Notes on such date of determination, in either case compounded semi-annually.
“Base Indenture” has the meaning specified in the Recitals.
“Business Day” means any day except a Saturday, a Sunday or a day on which banking institutions are authorized or required by law, regulation or executive order to close in the City of New York or any city in which the Corporate Trust Office or any Place of Payment is located.
“Capital Stock” means of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock, but excluding, any debt securities convertible into such equity.
“Change of Control” means the occurrence of any of the following: (1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the Company’s assets and the assets of its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than to the Company or one of its Subsidiaries; (2) the adoption of a plan relating to the Company’s liquidation or dissolution; or (3) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as defined above), including any group defined as a person for the purpose of Section 13(d)(3) of the Exchange Act (other than any employee benefit plan of the Company or its Subsidiaries, and any Person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), becomes the beneficial owner, directly or indirectly, of more than 50% of the Company’s Voting Stock measured by voting power rather than number of shares, provided, however, that a person (as defined above) shall not be deemed a beneficial owner of, or to own beneficially, (A) any securities tendered pursuant to a tender or exchange offer made by or on behalf of such person (as defined above) or any of such person’s Affiliates until such tendered securities are accepted for purchase or exchange thereunder, or (B) any securities if such beneficial ownership (i) arises solely as a result of a revocable proxy delivered in response to a proxy or consent solicitation made pursuant to the applicable rules and regulations under the Exchange Act, and (ii) is not also then reportable on Schedule 13D (or any successor schedule) under the Exchange Act. Notwithstanding the foregoing, a transaction will not be considered to be a Change of Control if (a) the Company becomes a direct or indirect wholly-owned subsidiary of another Person and (b) (i) immediately following that transaction, a majority of the Voting Stock of such Person is held by the direct or indirect holders of the Company’s Voting Stock immediately prior to such transaction or (ii) immediately following such transaction no Person (other than a Person satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such Person measured by voting power rather than number of shares.
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“Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Ratings Event.
“Company” has the meaning specified in the Preamble.
“Consolidated Net Tangible Assets” means, at the date of determination, the aggregate amount of assets of the Company and its consolidated Subsidiaries, less applicable reserves and other properly deductible items, after deducting from that net amount: (a) all current liabilities, and (b) goodwill, trademarks, trade names, patents, unamortized debt-discount and other like intangibles, in each case as reflected on the Company’s most recent consolidated balance sheet prepared in accordance with GAAP.
“Definitive Note” means a certificated Senior Note.
“DTC” means The Depository Trust Company and its successors.
“GAAP” means generally accepted accounting principles in the United States of America in effect from time to time.
“Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under: (1) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements; (2) other agreements or arrangements designed to manage interest rates or interest rate risk; and (3) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices.
“Indenture” has the meaning specified in the Recitals.
“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.
“Investment Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating categories of Moody’s); a rating of BBB- or better by S&P (or its equivalent under any successor rating categories of S&P); and the equivalent investment grade credit rating from any additional Rating Agency or Rating Agencies selected by the Company.
“Lien” means any lien, security interest, pledge, charge or encumbrance of any kind.
“Moody’s” means Moody’s Investors Service Inc., and its successors.
“Net Rental Payments” means the total amount of rent payable by the lessee after excluding amounts required to be paid on account of maintenance and repairs, insurance, taxes, assessments, water rates and similar charges.
“Par Call Date” means May 13, 2030.
“Participant” means a Person who has an account with DTC.
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“Permitted Liens” means:
(1) Liens securing Hedging Obligations designed to protect the Company from fluctuations in interest rates, currencies, equities or the price of commodities and not for speculative purposes;
(2) Liens arising by reason of pledges or deposits necessary to qualify the Company or any of its Subsidiaries to conduct business, maintain self-insurance, or obtain the benefit of, or comply with, any law, including Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other forms of governmental insurance or benefits;
(3) Liens of any landlord on fixtures located on premises leased by the Company or any of its Subsidiaries, and tenants’ rights under leases, easements and similar Liens not materially impairing the use or value of the property involved;
(4) easements, zoning restrictions, building restrictions, rights-of-way and similar encumbrances or charges on real property imposed by law or arising in the ordinary course of business that are of a nature generally existing with respect to properties of a similar character;
(5) Liens in connection with bankers’ acceptance financing or used in the ordinary course of trade practices, statutory lessor and vendor privilege Liens and Liens in connection with good faith bids, tenders and deposits;
(6) Liens in favor of the Company or any of its wholly-owned Restricted Subsidiaries; and
(7) customary Liens granted in favor of a trustee to secure fees and other amounts owing to such trustee under an indenture.
“Preferred Stock” as applied to the Capital Stock of any Person, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends or distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such Person.
“Principal Property” means all real property and improvements thereon, including, without limitation, any manufacturing facility or plant or any portion thereof, office facility, including the Company’s principal corporate offices, warehouse, research facility or distribution center located within the United States (excluding its territories and possessions and Puerto Rico) and owned or leased by the Company or any of its Restricted Subsidiaries, the gross book value (without deduction of any depreciation reserves) of which on the date as of which the determination is being made exceeds 1.5% of the Consolidated Net Tangible Assets of the Company, except any such property which the Board of Directors , in its good faith opinion, determines is not of material importance to the business conducted by the Company and its Subsidiaries, taken as a whole, as evidenced by a Board Resolution.
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“Rating Agency” means (1) each of Moody’s and S&P; and (2) if either of Moody’s or S&P ceases to rate the Senior Notes or fails to make a rating of the Senior Notes publicly available, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act, selected by the Company as a replacement agency for Moody’s or S&P, or both, as the case may be.
“Ratings Event” means during the period commencing on the date of the Company’s first public announcement of any Change of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control (which 60-day period will be extended so long as the rating of the Senior Notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies), the rating of the Senior Notes shall be reduced by both Rating Agencies and the Senior Notes are rated below Investment Grade by both Rating Agencies and are not, within such period, subsequently upgraded by both Rating Agencies to an Investment Grade rating; provided, however, that a Ratings Event otherwise arising by virtue of a particular reduction in rating will not be deemed to have occurred in respect of a particular Change of Control (and thus will not be deemed a Ratings Event for purposes of the definition of Change of Control Repurchase Event) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or confirm to the Company in writing at its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control has occurred at the time of the Ratings Event).
“Remaining Scheduled Payments” means, with respect to the Senior Notes to be redeemed, the remaining scheduled payments of the principal thereof and interest thereon that would be due after the related Redemption Date thereof but for the redemption to the Par Call Date; provided, however, that, if that Redemption Date is not an Interest Payment Date with respect to such Senior Note, the amount of the next succeeding scheduled interest payment thereon will be reduced by the amount of interest accrued thereon from, and including, the preceding Interest Payment Date to, but excluding, that Redemption Date.
“Restricted Subsidiary” means (a) any of the Company’s Subsidiaries which has substantially all of its property in the United States, which owns or is a lessee of any Principal Property and (b) any other Subsidiary which is hereafter designated by the Board of Directors as a Restricted Subsidiary.
“S&P” means S&P Global Ratings, a division of S&P Global, Inc., and its successors.
“Sale and Leaseback Transaction” means any arrangement whereby the Company or any of its Restricted Subsidiaries has sold or transferred, or will sell or transfer, any Principal Property and has or will take back a lease pursuant to which the rental payments are calculated to amortize the purchase price of such Principal Property substantially over the useful life of such Principal Property.
“Senior Notes” has the meaning specified in Section 2.01. Unless the context provides otherwise, all references to “Senior Notes” for all purposes of this Indenture shall include any Additional Senior Notes.
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“Stated Maturity” means, with respect to the Senior Notes, the relevant date set forth in Section 2.03.
“Supplemental Indenture” has the meaning specified in the Preamble.
“Treasury Rate” means, with respect to any Redemption Date pursuant to Section 2.17, the yield applicable to such Senior Notes determined by the Company in accordance with the following two paragraphs.
The Treasury Rate applicable to the Senior Notes shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the applicable Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the relevant Redemption Date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
If on the third Business Day preceding the relevant Redemption Date H.15 TCM or any successor designation or publication is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding the Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
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“Trustee” has the meaning specified in the Preamble.
“Voting Stock” of any specified “person” (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date means the Capital Stock of such person that is at the time entitled to vote generally in the election of the board of directors or managers of such person (or, if such person is a partnership, the board of directors or other governing body of the general partner of such person).
(b) The terms defined in this Section have the meanings assigned to them in this Section and include the plural as well as the singular.
(c) Terms used herein without definition shall have the meanings specified in the Base Indenture.
(d) All references to Articles and Sections, unless otherwise specified, refer to the corresponding Articles and Sections of this Supplemental Indenture.
(e) The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision.
Section 1.02 Index of Defined Terms.
| Term | Section | |
| Additional Senior Notes | 2.02(c) | |
| Base Indenture | Recitals | |
| Change of Control Offer | 2.16(a) | |
| Change of Control Payment Date | 2.17(b) | |
| Company | Preamble | |
| Global Notes | 2.10(b) | |
| Indenture | Recitals | |
| Interest Payment Date | 2.04(b)(i) | |
| Regular Record Date | 2.04(b)(i) | |
| Senior Notes | 1.01(a) | |
| Supplemental Indenture | Preamble | |
| Transfer Agent | 2.09 | |
| Trustee | Preamble |
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ARTICLE II
THE SENIOR NOTES
Section 2.01 Title of Securities. There shall be a series of Securities designated the “5.500% Senior Notes due 2030” of the Company (the “Senior Notes”).
Section 2.02 Limitation of Aggregate Principal Amount.
(a) The Senior Notes will be initially issued in an aggregate principal amount of $500,000,000.
(b) The aggregate principal amount of the Senior Notes specified in this Section shall be subject to the amount of such series that is authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, such series pursuant to Section 3.4, 3.5, 3.6, 9.6, 11.6 or 13.3 of the Base Indenture and the amount of such series which, pursuant to Section 3.3 of the Base Indenture, is deemed never to have been authenticated and delivered thereunder.
(c) The Company may from time to time, without notice to or the consent of the Holders of the Senior Notes, create and issue additional Senior Notes having the same terms as, and ranking equally and ratably with, the Senior Notes in all respects (except for the issue date, the public offering price and, if applicable, the payment of interest accruing prior to the issue date of such additional Senior Notes and the first Interest Payment Date) (“Additional Senior Notes”); provided, that if such Additional Senior Notes are not fungible with the then outstanding Senior Notes for U.S. federal income tax purposes, such Additional Senior Notes will have a different CUSIP, ISIN and/or any other identifying number. Such Additional Senior Notes may be consolidated and form a single series with, and will have the same terms as to ranking, redemption, waivers, amendments or otherwise as, the Senior Notes, and will vote together as one class on all matters with respect to the Senior Notes.
Section 2.03 Principal Payment Date.
(a) The principal amount of the Senior Notes outstanding (together with any accrued and unpaid interest) shall be payable in a single installment on June 13, 2030, which date shall be the Stated Maturity of the Senior Notes.
Section 2.04 Interest on the Senior Notes.
(a) The Senior Notes will bear interest at the rate of 5.500% per annum from June 13, 2025, or from the most recent Interest Payment Date through which interest has been paid or duly provided for.
(b) Interest on the Senior Notes will be payable semi-annually in arrears on June 13 and December 13 of each year (each such date, an “Interest Payment Date”), beginning on December 13, 2025, until the principal amount has been paid or made available for payment, to Holders of record at the close of business on June 1 or December 1, as the case may be, immediately preceding the applicable Interest Payment Date, whether or not a Business Day (each such date, a “Regular Record Date”). The rights of Holders of beneficial interests of Senior Notes to receive the payments of interest on the Senior Notes are subject to the applicable procedures of the Depositary.
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(c) If any Interest Payment Date, Stated Maturity or Redemption Date falls on a day that is not a Business Day, the payment will be made on the next Business Day, and no interest will accrue for the period from and after such Interest Payment Date, Stated Maturity or Redemption Date.
(d) Interest on the Senior Notes will be computed on the basis of a 360-day year consisting of twelve 30-day months. The amount of interest payable for any period shorter than a full monthly period shall be computed on the basis of the actual number of calendar days elapsed in such period.
(e) Claims against the Company for payment of principal, premium, if any, and interest on the Senior Notes will become void unless presentment for payment is made (where so required under the Indenture) within, in the case of principal and premium, if any, a period of ten years or, in the case of interest, a period of five years, in each case from the applicable original date of payment therefor.
Section 2.05 Place of Payment. The place where the Senior Notes may be presented or surrendered for payment shall be the Corporate Trust Office of the Paying Agent maintained for that purpose initially in Atlanta, Georgia; provided, however, that at the Company’s option payment of interest may be made (i) by check mailed to the address of the Person entitled thereto as such address shall appear in the Securities Register or (ii) by wire transfer in immediately available funds at such place and to such account as may be designated by the Person entitled thereto as specified in the Securities Register in writing not less than ten days before the applicable Interest Payment Date. The place where the Senior Notes may be surrendered for registration of transfer or exchange and where notices and demand to or upon the Company in respect of the Senior Notes and the Indenture may be served shall be the Corporate Trust Office of the Trustee maintained for that purpose initially in Atlanta, Georgia.
Section 2.06 Sinking Fund Obligations. The Company has no obligation to redeem or purchase any Senior Notes pursuant to any sinking fund, amortization or analogous requirement.
Section 2.07 Denomination. The Senior Notes will be issued in the form of one or more fully registered global securities, without coupons, in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
Section 2.08 [Reserved]
Section 2.09 Securities Registrar, Transfer Agent and Paying Agent for the Senior Notes. The Trustee shall serve initially as the Securities Registrar, Paying Agent and transfer agent (the “Transfer Agent”) for the Senior Notes. The Company may enter into an appropriate agency agreement with any Paying Agent, Securities Registrar or Transfer Agent, which agreement shall implement the provisions of the Indenture that relate to such Paying Agent, Securities Registrar or Transfer Agent. The Company may change the Paying Agent, Securities Registrar or Transfer Agent without prior notice to the Holders. The Company may act as its own Paying Agent, Securities Registrar or Transfer Agent.
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Section 2.10 Form of Senior Notes.
(a) The Senior Notes shall be substantially in the form of Annex I attached hereto (other than, with respect to any Additional Senior Notes, changes related to the issue date, the public offering price and, if applicable, the payment of interest accruing prior to the issue date of such Additional Senior Notes and the first Interest Payment Date). The Senior Notes may have notations, legends or endorsements required by law, stock exchange or other rules or usage to which the Company is subject. Each Senior Note shall be dated the date of its authentication.
(b) The Senior Notes shall be issued initially in the form of one or more Global Securities of such series (the “Global Notes”), which shall be deposited on behalf of the purchasers of the Senior Notes represented thereby with the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided. Senior Notes issued in definitive certificated form in accordance with the terms of the Indenture, if any, shall be substantially in the form of Annex I attached hereto (but without the Global Securities legend thereon). Each Global Note shall represent such of the outstanding Senior Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Senior Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Senior Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Senior Notes represented thereby shall be made by the Transfer Agent in accordance with instructions given by the Holder thereof as required by Section 2.15 hereof.
Section 2.11 Execution and Authentication. The Trustee, upon a Company Order and pursuant to Indenture, shall authenticate and deliver the Senior Notes for original issue in an initial aggregate principal amount of $500,000,000. Such Company Order shall specify the amount of the Senior Notes to be authenticated, the date on which the original issue of Senior Notes is to be authenticated and the aggregate principal amount of Senior Notes outstanding on the date of authentication. All of the Senior Notes issued under this Supplemental Indenture shall be treated as a single series for all purposes under the Base Indenture and this Supplemental Indenture, including, without limitation, waivers, amendments and offers to purchase.
Section 2.12 Depositary for Global Notes. The Depositary with respect to the Senior Notes issued in whole or in part in the form of one or more Global Notes shall initially be DTC.
Section 2.13 [Reserved].
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Section 2.14 Transfer and Exchange.
(a) The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with the requirements of the Indenture and the then applicable procedures of the Depositary (the “Applicable Procedures”). In connection with all transfers and exchanges of beneficial interests, the transferor of such beneficial interest must deliver to the Transfer Agent either (A) (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase or (B) if Definitive Notes are at such time permitted to be issued pursuant to this Indenture, (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given by the Depositary to the Securities Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (1) above. Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in the Indenture and the Senior Notes or otherwise applicable under the Securities Act, the Securities Registrar shall adjust the principal amount of the relevant Global Notes pursuant to Section 2.15 hereof.
(b) Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.14(b), the Securities Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder shall present or surrender to the Transfer Agent the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Securities Registrar duly executed by such Holder or by its attorney, duly authorized in writing. The Trustee (or Authenticating Agent if the Trustee shall have appointed an Authenticating Agent pursuant to Section 6.14 of the Base Indenture) shall cancel any such Definitive Notes so surrendered, and the Company shall execute and, upon receipt of a Company Order, the Trustee or Authenticating Agent shall authenticate and deliver to the Person designated in the instructions a new Definitive Note in the appropriate principal amount. Any Definitive Note issued pursuant to this Section 2.14(b) shall be registered in such name or names and in such authorized denomination or denominations as the Holder of such beneficial interest shall instruct the Securities Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Paying Agent shall deliver such Definitive Note to the Persons in whose names such Definitive Notes are so registered.
Section 2.15 Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be returned to or retained and canceled by the Securities Registrar in accordance with Section 3.9 of the Base Indenture. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Senior Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Securities Registrar or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Securities Registrar or by the Depositary at the direction of the Securities Registrar to reflect such increase.
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Section 2.16 Change of Control Offer.
(a) If a Change of Control Repurchase Event occurs with respect to the Senior Notes, unless the Company has exercised its right to redeem all of the Senior Notes pursuant to Section 2.17 hereof, the Company will be required to make an offer (the “Change of Control Offer”) to each Holder of the applicable Senior Notes to repurchase all or any part (equal to $2,000 and integral multiples of $1,000 in excess thereof) of such Holder’s Senior Notes, at a repurchase price in cash equal to 101% of the aggregate principal amount of the Senior Notes repurchased, plus any accrued and unpaid interest on the Senior Notes repurchased to, but excluding, the date of repurchase (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date); provided that after giving effect to the repurchase, any Senior Notes that remain outstanding shall have a minimum denomination of $2,000 or integral multiples of $1,000 in excess thereof.
(b) Within 30 days following any Change of Control Repurchase Event, or, at the Company’s option, prior to any Change of Control, but after the public announcement of the Change of Control, the Company will electronically deliver or mail a notice (or otherwise deliver in accordance with the applicable procedures of the Depositary) to each Holder, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event and offering to repurchase the Senior Notes on the payment date specified in the notice, which date will be no earlier than 10 days and (except to the extent that such notice is conditioned on the occurrence of the Change of Control Repurchase Event) no later than 60 days from the date such notice is electronically delivered or mailed, which date, in a notice conditioned on the occurrence of a Change of Control Repurchase Event, may be designated by reference to the date that such condition is satisfied, rather than a specific date (the “Change of Control Payment Date”).
(c) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder, to the extent those laws and regulations are applicable in connection with the repurchase of the Senior Notes as a result of a Change of Control repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the Senior Notes and the Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Repurchase Event provisions of the Senior Notes and the Indenture by virtue of such conflict.
(d) On the Change of Control Payment Date, the Company will, to the extent lawful:
(i) accept for payment all the Senior Notes or portions of the Senior Notes (equal to $2,000 and integral multiples of $1,000 in excess thereof) properly tendered pursuant to the Change of Control Offer;
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(ii) deposit with the Paying Agent an amount equal to the Change of Control repurchase price in respect of all the Senior Notes or portions of the Senior Notes properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the Senior Notes properly accepted, together with an Officer’s Certificate stating the aggregate principal amount of the Senior Notes being purchased and an Opinion of Counsel required under the Indenture.
(e) The Paying Agent will promptly deliver to each Holder of Senior Notes properly tendered the payment for the Senior Notes, and the Trustee or Authenticating Agent will promptly authenticate and deliver (or cause to be transferred by book-entry) to each Holder a new Senior Note equal in principal amount to any unpurchased portion of any Senior Notes surrendered; provided, that each new Senior Note will be in a minimum denomination of $2,000 or integral multiples of $1,000 in excess thereof.
(f) Notwithstanding the foregoing, the Company will not be required to make an offer to repurchase the Senior Notes upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company and such third party purchases all Senior Notes properly tendered and not withdrawn under its offer.
(g) If Holders of not less than 90% in aggregate principal amount of the outstanding Senior Notes validly tender and do not withdraw such Senior Notes in an offer to repurchase the Senior Notes upon a Change of Control Repurchase Event and the Company, or any third party making an offer to repurchase the Senior Notes upon a Change of Control Repurchase Event in lieu of the Company pursuant to the foregoing clause (f) hereof, purchase all of the Senior Notes validly tendered and not withdrawn by such Holders, then the Company will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following the Change of Control Payment Date, to redeem all Senior Notes of such series that remain outstanding following such purchase at a Redemption Price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date (subject to the right of the Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date).
(h) The Trustee shall have no responsibility for any calculation or determination in respect of the Change of Control Repurchase Event or repurchase price of any Notes, or any component thereof, and shall be entitled to receive, and fully-protected in relying upon, an Officer’s Certificate from the Company stating that such Change of Control Repurchase Event has occurred and specifying such repurchase price.
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Section 2.17 Optional Redemption.
(a) Prior to the Par Call Date, the Company may redeem the Senior Notes, at its option, in whole or in part, at any time and from time to time, at a Redemption Price calculated by the Company and equal to the greater of:
(i) 100% of the principal amount of the Senior Notes to be redeemed; and
(ii) the sum of the present values of the Remaining Scheduled Payments that would be due if the Senior Notes matured on the Par Call Date, discounted to the redemption date, on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months), at the Treasury Rate plus 25 basis points;
plus, in each case, accrued and unpaid interest, if any, to, but excluding, the Redemption Date (subject to the right of the Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date). The Company’s actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error.
(b) On or after the Par Call Date, the Company may redeem the Senior Notes, at its option, in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount of such Senior Notes to be redeemed plus accrued and unpaid interest, if any, to, but excluding, the relevant Redemption Date (subject to the right of the Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date).
(c) Neither the Trustee nor Paying Agent will have any responsibility or liability for the calculation of the foregoing Redemption Prices or for determining the rates or information in connection with such calculation.
Section 2.18 [Reserved].
Section 2.19 [Reserved].
ARTICLE III
AMENDMENT TO BASE INDENTURE
Section 3.01 Amendment to Section 5.1 of the Base Indenture.
Solely as it relates to the Senior Notes, Section 5.1 of the Base Indenture is hereby amended by replacing the text of clause (4) thereof with the following:
(4) the failure to repurchase any Senior Notes tendered for repurchase at the option of the Holders thereof before their Stated Maturity in compliance with Section 2.16 of Supplemental Indenture No. 2, dated as of June 13, 2025 (the “Second Supplemental Indenture”), between the Company and the Trustee.
Section 3.02 Amendment to Section 9.2 of the Base Indenture.
Solely as it relates to the Senior Notes, Section 9.2 of the Base Indenture is hereby amended by adding the following text after the final paragraph of Section 9.2:
Notwithstanding anything herein or otherwise, the provisions under the Indenture relative to the Company’s obligation to make any offer to repurchase the Senior Notes as a result of a Change of Control Repurchase Event pursuant to Section 2.16 of the Second Supplemental Indenture may be waived or modified with the written consent of the Holders of a majority in principal amount of the Senior Notes then outstanding.
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Section 3.03 Amendment to Article X of the Base Indenture.
Solely as it relates to the Senior Notes, Article X of the Base Indenture is hereby amended by adding the following immediately after Section 10.5 thereto:
Section 10.6 Limitation on Liens.
(a) The Company will not incur, nor will the Company permit any Restricted Subsidiary to incur, any Liens upon any Principal Property of the Company or any Restricted Subsidiary, whether now owned or hereafter created or acquired, or on any Capital Stock or indebtedness of any Restricted Subsidiary, in order to secure indebtedness for borrowed money of the Company or any of its Restricted Subsidiaries, in each case, unless prior to or at the same time, the Senior Notes are equally and ratably secured with (or, at the Company’s option, senior to) such secured indebtedness for borrowed money until such time as such indebtedness for borrowed money is no longer secured by such Lien.
(b) The foregoing restriction does not apply to:
(i) Liens on any Principal Property existing with respect to any Person at the time such Person becomes a Restricted Subsidiary, provided that such Lien was not incurred in anticipation of such Person becoming a Restricted Subsidiary;
(ii) Liens on any Principal Property existing at the time of acquisition by the Company or any Restricted Subsidiary of such Principal Property or Liens on any Principal Property to secure the payment of all or any part of the purchase price of such Principal Property, or Liens on any Principal Property to secure any indebtedness incurred prior to, at the time of, or within 12 months after, the latest of the acquisition of such Principal Property or the completion of construction, the completion of improvements or the commencement of substantial commercial operation of such Principal Property for the purpose of financing all or any part of the purchase price of the Principal Property and related costs and expenses, the construction or the making of the improvements;
(iii) Liens securing indebtedness of any Restricted Subsidiary owing to the Company or any Restricted Subsidiary;
(iv) Liens existing on the date of the initial issuance of the Senior Notes (other than any Additional Senior Notes);
(v) Liens on any Principal Property or assets of a Person existing at the time such Person is merged into or consolidated with the Company or any Restricted Subsidiary or at the time of a sale, lease or other disposition of all or substantially all of the properties or assets of a Person to the Company or any Restricted Subsidiary, provided that such Lien was not incurred in anticipation of the merger, consolidation, sale, lease, other disposition or other such transaction;
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(vi) Liens created in connection with or to secure a non-recourse obligation or a project financed thereby;
(vii) Liens created to secure the Senior Notes;
(viii) Liens imposed by law or arising by operation of law, including, without limitation, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, suppliers’, vendors’, and landlords’ Liens and other similar Liens, Liens for master’s and crew’s wages and other similar laws, arising in the ordinary course of business, Liens arising out of judgments or awards against a Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review or the period within which such proceedings may be initiated shall not have expired and Liens arising solely by virtue of any statutory or common law provision relating to banker’s Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution;
(ix) Liens for taxes, assessments or other governmental charges or levies not yet due or payable, not yet subject to penalties for non-payment or which are being contested in good faith by appropriate proceedings;
(x) Liens to secure the performance of obligations with respect to statutory or regulatory requirements, bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance or return-of-money bonds and other obligations of a like nature;
(xi) Liens arising in connection with contracts and subcontracts with or made at the request of the United States, any state thereof, or any department, agency, or instrumentality of the United States or any state thereof;
(xii) Permitted Liens; or
(xiii) any extensions, renewals or replacements of any Lien referred to in clauses (i) through (xii) without increase of the principal amount of the indebtedness for borrowed money secured by such Lien (except to the extent of any fees or other costs associated with any such extension, renewal or replacement); provided, however, that any Liens permitted by any such clauses shall not extend to or cover any of the Company’s Principal Properties or the Principal Properties of any of the Company’s Restricted Subsidiaries, as the case may be, other than the Principal Property specified in such clauses and improvements to such Principal Property.
(c) Notwithstanding the restrictions set forth in the preceding clause (a), the Company and its Restricted Subsidiaries will be permitted to incur indebtedness for borrowed money secured by Liens which would otherwise be subject to the foregoing restrictions without equally and ratably securing the Senior Notes, provided that, after giving effect to such indebtedness for borrowed money, the aggregate amount of all indebtedness for borrowed money secured by such Liens (not including Liens permitted under clauses (b)(i) through (b)(xiii) above) does not at such time exceed 15% of Consolidated Net Tangible Assets calculated as of the date of the creation or incurrence of the Lien. The Company and its Restricted Subsidiaries may also, without equally and ratably securing the Senior Notes, create or incur Liens that renew, substitute or replace (including successive renewals, substitutions or replacements), in whole or in part, any Lien permitted pursuant to the preceding sentence.
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Section 10.7 Limitation on Sale and Leaseback Transactions.
(a) The Company will not, and will not permit any Restricted Subsidiary to, enter into any Sale and Leaseback Transaction other than:
(i) any Sale and Leaseback Transaction so long as the Company or such Restricted Subsidiary would be entitled to create a Lien on such Principal Property securing the Attributable Debt with respect to such Sale and Leaseback Transaction without equally and ratably securing the Senior Notes pursuant to Section 10.6 of the Indenture; and
(ii) any Sale and Leaseback Transaction of which the net proceeds received by the Company or any Restricted Subsidiary are at least equal to the fair market value (as determined by the Board of Directors) of such Principal Property and are applied by the Company or such Restricted Subsidiary, as applicable, within 270 days after the sale of such Principal Property in connection with which such Sale and Leaseback Transaction is completed, to either (or in combination of) (i) the prepayment, repayment, redemption or purchase of the Senior Notes, indebtedness of the Company that is pari passu in right of payment to the Senior Notes or indebtedness of a Restricted Subsidiary (other than indebtedness owed to the Company or its Affiliates) or (ii) the purchase, construction, development, expansion or improvement of Principal Property.
(b) This restriction will not apply to any Sale and Leaseback Transaction, and there will be excluded from Attributable Debt in any computation described in this Section 10.7 or Section 10.6 of the Indenture with respect to any such transaction, (x) any such transaction solely between the Company and a Restricted Subsidiary or solely between Restricted Subsidiaries, (y) any such transaction involving a lease with a term of up to (including renewal rights exercisable at the option of the Company or a Restricted Subsidiary, as applicable) three years or (z) any lease of Principal Property entered into within 120 days after the later of the acquisition, completion of construction or commencement of full operation of such Principal Property.
Section 3.04 Satisfaction and Discharge; Defeasance and Covenant Defeasance.
(a) Solely as it relates to the Senior Notes, Section 14.3 of the Base Indenture is hereby amended by replacing “Sections 10.4 to 10.5, inclusive” each time it appears therein with “Sections 10.4 to 10.7, inclusive”.
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ARTICLE IV
MISCELLANEOUS
Section 4.01 Integral Part; Effect of Supplement on Indenture. This Supplemental Indenture constitutes an integral part of the Base Indenture. Except for the amendments and supplements made by this Supplemental Indenture (which only apply to the Senior Notes), the Base Indenture shall remain in full force and effect as executed.
Section 4.02 Adoption, Ratification and Confirmation. The Indenture is in all respects hereby adopted, ratified and confirmed.
Section 4.03 Trustee Not Responsible for Recitals. The recitals in this Supplemental Indenture are made by the Company, and the Trustee assumes no responsibility for the correctness of such recitals. The Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture.
Section 4.04 Counterparts. This Supplemental Indenture may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile, PDF or other electronic transmission (including any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes, and signatures of the parties hereto transmitted by facsimile, PDF or other electronic transmission shall be deemed to be their original signatures for all purposes.
Section 4.05 Governing Law; Waiver of Jury Trial; Forum Selection.
THIS SUPPLEMENTAL INDENTURE AND THE SENIOR NOTES WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
Each of the Company, the Trustee and the Holders by their acceptance of the Senior Notes irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Supplemental Indenture, the Senior Notes or the transactions contemplated hereby.
Each of the Company, the Holders and the Trustee hereby irrevocably submits to the jurisdiction of any New York State court sitting in the Borough of Manhattan in the City of New York or any federal court sitting in the Southern District in the Borough of Manhattan in the City of New York in respect of any suit, action or proceeding arising out of or relating to this Supplemental Indenture, the Senior Notes or the transactions contemplated hereby, and irrevocably accepts for itself and in respect of its property, generally and unconditionally, jurisdiction of the aforesaid courts, and waives any objection it may have under law to such courts and jurisdiction as proper venue in connection with any such suit, action or proceeding.
Section 4.06 Electronic Signatures. All notices, approvals, consents, requests and any communications hereunder must be in writing (provided that any communication sent to the Trustee hereunder must be in the form of a document that is signed manually or by way of a digital signature provided by DocuSign (or such other digital signature provider as specified in writing to the Trustee by the authorized representative)), in English. The Company agrees to assume all risks arising out of the use of using digital signatures and electronic methods to submit communications to the Trustee, including, without limitation and subject to the provisions of Section 6.3 of the Base Indenture, the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the day and year first above written.
| PVH CORP. | ||
| By: | /s/ Carlos Carvalho | |
| Name: | Carlos Carvalho | |
| Title: | Executive Vice President and Treasurer | |
[Signature Page to Supplemental Indenture No. 2]
|
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||
| By: | /s/ Gregory M. Jackson | |
| Name: | Gregory M. Jackson | |
| Title: | Vice President | |
[Signature Page to Supplemental Indenture No. 2]
ANNEX I
Form of Senior Notes
FORM OF FACE OF SECURITY
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER, CEDE & CO., HAS AN INTEREST HEREIN.
Annex I-1
PVH CORP.
[FORM OF 5.500% SENIOR NOTES DUE 2030]
$500,000,000
CUSIP: 693656 AE0
ISIN: US693656AE03
No. ___
PVH CORP., a corporation organized and existing under the laws of Delaware (hereinafter called the “Company,” which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of $500,000,000 or such other principal amount as may be set forth in the records of the Securities Registrar hereinafter referred to in accordance with the Indenture, on June 13, 2030 (the “Stated Maturity”). The Company further promises to pay interest on said principal sum from June 13, 2025, or from the most recent interest payment date (each such date, an “Interest Payment Date”) on which interest has been paid or duly provided for, semi-annually in arrears on June 13 and December 13 of each year, beginning on December 13, 2025, at the rate of 5.500% per annum, until the principal amount has been paid or made available for payment, to Holders of record at the close of business on June 1 or December 1, as the case may be, immediately preceding the applicable Interest Payment Date, whether or not a Business Day (each such date, a “Regular Record Date”).
Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months. The amount of interest payable for any period shorter than a full monthly period shall be computed on the basis of the actual number of calendar days elapsed in such a period. If any Interest Payment Date, Stated Maturity or Redemption Date falls on a day that is not a Business Day, the payment will be made on the next Business Day, and no interest will accrue for the period from and after such Interest Payment Date, Stated Maturity or Redemption Date.
“Business Day” means any day except a Saturday, a Sunday or a day on which banking institutions are authorized or required by law, regulation or executive order to close in the City of New York or any city in which the Corporate Trust Office or any Place of Payment is located.
The interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest installment. Any such interest installment not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed in the manner described in the Indenture.
Payment of the principal of (and premium, if any) and interest on this Security will be made at the Corporate Trust Office of the Paying Agent maintained for that purpose in Atlanta, Georgia; provided, however, that at the Company’s option payment of interest may be made (i) by check mailed to the address of the Person entitled thereto as such address shall appear in the Securities Register or (ii) by wire transfer in immediately available funds at such place and to such account as may be designated by the Person entitled thereto as specified in the Securities Register in writing not less than ten days before the applicable Interest Payment Date.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
Annex I-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
| PVH CORP. | |||
| By: | |||
| Name: | Carlos Carvalho | ||
| Title: | Executive Vice President and Treasurer | ||
Annex I-3
This is one of the Securities of the series designated therein referred to in the within mentioned Indenture.
|
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION not in its individual capacity but solely as Trustee | ||
| By: | ||
| AUTHORIZED SIGNATORY | ||
Dated:
Annex I-4
FORM OF REVERSE OF SECURITY
This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under a Base Indenture, dated as of April 15, 2024 (the “Base Indenture”), as supplemented by a Supplemental Indenture No. 2, dated as of June 13, 2025 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), between the Company and U.S. Bank Trust Company, National Association, as Trustee (herein called the “Trustee,” which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Trustee, the Company and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered.
All terms used in this Security are defined in the Indenture.
The Securities of this series are subject to redemption as provided in Section 2.17 of the Supplemental Indenture.
The Indenture permits, with certain exceptions as therein provided, the Company and the Trustee at any time to enter into a supplemental indenture or indentures for the purpose of modifying in any manner the rights and obligations of the Company and of the Holders of the Securities, with the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities to be affected by such supplemental indenture. The Indenture also contains provisions permitting Holders of specified percentages in principal amount of the Securities at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of this Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security or certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture.
As provided in and subject to the provisions of the Indenture, if an Event of Default with respect to the Securities of this series at the time Outstanding occurs and is continuing, the principal amount of all the Securities of this series may be declared due in the manner and with the effect provided in the Indenture.
Annex I-5
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Securities Register, upon surrender of this Security for registration of transfer at the office or agency of the Company maintained under Section 10.2 of the Base Indenture duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar duly executed by, the Holder hereof or his or her attorney duly authorized in writing, and thereupon one or more new Securities of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee shall treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
The Securities of this series are issuable only in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of such series of a different authorized denomination, as requested by the Holder surrendering the same.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THIS SECURITY WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
Annex I-6
Exhibit 5.1
[Letterhead of Wachtell, Lipton, Rosen & Katz]
June 13, 2025
PVH Corp.
285 Madison Avenue
New York, New York 10017
Ladies and Gentlemen:
We have acted as special counsel to PVH Corp., a Delaware corporation (the “Company”), in connection with the issuance and sale by the Company of $500,000,000 5.500% Senior Notes due 2030 (the “Notes”). The Notes were sold pursuant to an Underwriting Agreement, dated June 10, 2025 (the “Underwriting Agreement”), by and among the Company and the Representatives (as defined therein), as representatives of the several Underwriters named in Schedule I thereto (the “Underwriters”). The Notes are to be issued under that certain Indenture, dated as of April 15, 2024, between the Company and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as supplemented by that certain Supplemental Indenture No. 2, dated as of June 13, 2025, between the Company and the Trustee (collectively, the “Indenture”).
We have examined and relied on originals or copies certified or otherwise identified to our satisfaction of such documents, corporate records, certificates of the Company and public officials and other instruments as we have deemed necessary or appropriate for the purposes of this letter, including (a) the registration statement on Form S-3ASR (File No. 333-278465), filed with the Securities and Exchange Commission (the “Commission”) on April 2, 2024 (the “Registration Statement”), but excluding the documents incorporated therein; (b) the base prospectus, dated April 2, 2024, included in the Registration Statement, but excluding the documents incorporated therein; (c) the preliminary prospectus supplement, dated June 10, 2025, as filed with the Commission pursuant to Rule 424(b)(5) under the Securities Act of 1933, as amended (the “Act”), but excluding the documents incorporated by reference therein; (d) the final term sheet dated June 10, 2025, as filed with the Commission pursuant to Rule 433 under the Act; (e) the prospectus supplement, dated June 10, 2025, as filed with the Commission pursuant to Rule 424(b)(5) under the Act, but excluding the documents incorporated by reference therein; (f) a copy of the Amended and Restated Certificate of Incorporation of the Company and a copy of the Amended and Restated Bylaws of the Company, each as set forth in the certificate of the Secretary of the Company, dated the date hereof; (g) the Indenture; (h) a copy of the Global Note, dated as of June 13, 2025; (i) an executed copy of the Underwriting Agreement; (j) resolutions of the Board of Directors of the Company relating to the issuance of the Notes; and (k) such other corporate records, certificates and other documents and such matters of law, in each case, as we have deemed necessary or appropriate. In such examination, we have assumed (i) the authenticity of original documents and the genuineness of all signatures; (ii) the conformity to the originals of all documents submitted to us as copies; (iii) the truth, accuracy and completeness of the information, representations and warranties contained in the agreements, records, documents, instruments and certificates we have reviewed; (iv) all Notes will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and the Prospectus Supplement; and (v) the Underwriting Agreement has been duly authorized and validly executed and delivered by the Underwriters. We have assumed that the terms of the Notes have been established so as not to, and that the execution and delivery by the parties thereto and the performance of such parties’ obligations under the Notes will not, breach, contravene, violate, conflict with or constitute a default under (1) any law, rule or regulation to which any party thereto is subject (excepting the laws of the State of New York and the federal securities laws of the United States of America as such laws apply to the Company); (2) any judicial or regulatory order or decree of any governmental authority; or (3) any consent, approval, license, authorization or validation of, or filing, recording or registration with any governmental authority. We also have assumed that the Indenture and the Notes are the valid and legally binding obligation of the Trustee. As to any facts material to the opinion expressed herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and others. We have further assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, facsimile, conformed, electronic or photostatic copies, and the authenticity of the originals of such copies.
June 13, 2025
Page 2
We are members of the Bar of the State of New York, and we have not considered, and we express no opinion as to, the laws of any jurisdiction other than the laws of the State of New York and the federal securities laws of the United States of America, in each case as in effect on the date hereof.
Based upon the foregoing, and subject to the assumptions, limitations, qualifications, exceptions and comments set forth in this letter, we advise you that, in our opinion, the Notes, when duly executed, authenticated, issued, delivered and paid for in accordance with the terms of the Indenture and the Underwriting Agreement, will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms
The opinion set forth above is subject to the effects of (a) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting the enforcement of creditors’ rights generally; (b) general equitable principles (whether considered in a proceeding in equity or at law); (c) an implied covenant of good faith and fair dealing; (d) provisions of law that require that a judgment for money damages rendered by a court in the United States be expressed only in United States dollars; (e) limitations by any governmental authority that limit, delay or prohibit the making of payments outside the United States; and (f) generally applicable laws that (i) provide for the enforcement of oral waivers or modifications where a material change of position in reliance thereon has occurred or provide that a course of performance may operate as a waiver, (ii) limit the availability of a remedy under certain circumstances where another remedy has been elected, (iii) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, gross negligence, recklessness, willful misconduct or unlawful conduct, (iv) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed-upon exchange, (v) may limit the enforceability of provisions providing for compounded interest, imposing increased interest rates or late payment charges upon delinquency in payment or default or providing for liquidated damages or for premiums upon acceleration, or (vi) limit the waiver of rights under usury laws. Furthermore, the manner in which any particular issue relating to the opinions would be treated in any actual court case would depend in part on facts and circumstances particular to the case and would also depend on how the court involved chose to exercise the wide discretionary authority generally available to it. We express no opinion as to the effect of Section 210(p) of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, as amended.
June 13, 2025
Page 3
We express no opinion as to whether, or the extent to which, the laws of any particular jurisdiction apply to the subject matter hereof, including, without limitation, the enforceability of the governing law provisions contained in the Notes and the Indenture. We express no opinion as to the ability of another court, federal or state, to accept jurisdiction and/or venue in the event the chosen court is unavailable for any reason, including, without limitation, natural disaster, act of God, human health or safety reasons or otherwise (including a pandemic).
This letter speaks only as of its date and is delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act. We hereby consent to the filing of a copy of this letter as an exhibit to the Company’s Current Report on Form 8-K, filed on June 13, 2025, and to the use of our name in the prospectus forming a part of the Registration Statement under the caption “Validity of the Securities.” In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act.
| Very truly yours, | |
| /s/ Wachtell, Lipton, Rosen & Katz |